Judgment

WANCHOO, J. : The appeal and the writ petition arise out of the same order of the Chief Commissioner of Pondicherry acting as the appellate authority under the Motor Vehicles Act and will be dealt with together. The petitioner is one of fourteen persons who had applied for a stage carriage permit before the State Transport Authority, Pondicherry. The petitioner s application was rejected and the permit was granted to Perumal Padayatchi, one of the respondents before us. The State Transport Authority considered various factors one of which was that Perumal Padayatchi was a native of Pondicherry and taking all the factors into account, the permit was granted to Perumal Padayatchi. The petitioner went in appeal before the Appellate Authority, who is the Chief Commissioner of Pondicherry. The Appellate Authority dismissed the appeal and observed that even if it were conceded that the claims of the petitioner were more or less equal to those of Perumal Padayatchi, the latter would be entitled to preference on the ground that he is a native of Pondicherry. We may add that though the petitioner used to live in Pondicherry, he was not a native of Pondicherry. This order rejecting the appeal was passed on September 9, 1960. The appeal has been filed with special leave against this order. The petitioner has also filed the writ petition against this order in which he raises the same points.

2. The main contention urged on behalf of the petitioner is that the order of the Appellate Authority shows that preference was granted to Perumal Padayatchi on the ground that he was a native of Pondicherry (i.e. he was born in Pondicherry while the petitioner was rely a resident of Pondicherry (i.e. he was not born in Pondicherry). The petitioner contends that such grant of preference on the ground of place of birth is hit by Art. 15 of the Constitution, as the petitioner is a citizen of India, and Art. 15 lays down that "the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them".

3. This contention of the petitioner is, met on behalf of the respondents in this way. The respondents submit that at the relevant time, Pondicherry was not within the territory of India and the Constitution did not apply to it. Therefore, the petitioner would have no right to apply to this court for special leave under Art. 136 of the Constitution nor would the petitioner have the right to proceed by way of a writ petition under Art. 32 against an order which was passed by the Appellate Authority in Pondicherry at a time when Pondicherry was in the territory of India. Reliance in this connection is placed on behalf of the respondents on the decision of this Court in Masthan Sahib v. Chief Commissioner, Pondicherry, AIR 1962 SC 797.

4. The petitioner also relies on the same decision of this Court. It is conceded on his behalf that in view of that decision it was not open to the petitioner to apply to this Court under Art. 136 and therefore the appeal may not be maintainable. But it is urged that under Art. 12 "the State" for the purpose of part III of the Constitution is defined to include "the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India". It is therefore contended that even though Pondicherry was not a part-of India when the order under challenge was passed the Appellate Authority which passed the order was a local or other authority under the control of the Government of India" and therefore was amenable to writ under Art. 32 of the Constitution. Further it is urged that whatever may have been the position when Masthan Sahib s case, AIR 1962 SC 797 was decided, Pondicherry is now within the territory of India since August 1962 and therefore this Court can now issue a writ to the Appellate Authority if the order under challenge viola